Water Bills Get Nod from Idaho Lawmakers

by Pat McCoy
Capital Press - March 8, 2002

BOISE -- A Senate committee approved legislation that would allow the U.S. Bureau of Reclamation to rent water from willing providers for flow augmentation for another three years, provided no other water users are harmed.

The Idaho House had passed House Bill 666 March 3 on a 62-to-2 vote, with 6 absent or excused. The measure left the Senate Resources and Conservation Committee March 4 with a do-pass recommendation, to be considered next by the full Senate.

The three-year extension of existing state law on flow augmentation tracks the life of a thre-year biological opinion on salmon recovery, said Norm Semanko, executive director of the Idaho Water Users Association.

"The key is that the bureau must purchase water from a willing seller, follow state law, and prevent injury to other water users," Semanko said. "That should prevent a Klamath Falls situation in Idaho, and in fact is similar to the direction Oregon is moving in regards to the Klamath situation."

Forfeiture Exception
Committee members also approved H569, a law protecting water right holders from forfeiture if they don't use their water for five years, when the nonuse is beyond their control.

Under Idaho water law, based on the priority doctrine of water rights commonly used across the West, a water right holder who fails to put his water to beneficial use for five years can lose his right, said Semanko.

"Idaho law allows several exceptions to the forfeiture rule. This legislation simply adds to the list of exceptions by protecting someone from losing a water right if he's prevented from using it by some rule or regulation, or some other situation beyond his control," he said.

"Idaho is becoming more urbanized. It's important to get some of these things into state code now, while we still have plenty of legislators who understand the problem," Semanko said.

H569 passed the House on Feb. 26 on a vote of 68 to 0 with two absent or excused. It moves next to the Senate floor.

Two Proposed Bills
The Senate Resources and Conservation Committee has more proposed water legislation to consider in future committee hearings, including Senate bills 1426 and 1427. The bills were brought to the legislature by the Idaho Dairymen's Association, working with the IWUA.

S1426 would require the Idaho Department of Water Resources to take into consideration both potential economic and environmental impacts when deciding to accept or reject a water right application, said Lewis Eilers, IDA executive director.

S1427 would allow the director of the IDWR to impose sanctions on persons who file appeals opposing water rights transfer applications for frivolous reasons when their protest is not reasonably grounded in law. Such protests cause unnecessary delay, iincreased start-up costs and harassment, Eilers said.

"This law will allow the director to use sound discretion in identifying such protests, and impose sanctions, such as requiring the protester to pay reasonable costs and expenses. Obviously, the law will allow any party to ask a court to review the director's decision," he said.

Eilers said allowing the director to make such decisions is nothing new. The director already sits as an administrative judge and has discretionary powers in other areas.

"Karl Dreher, the current director, agrees with us that something needs to change," siad Eilers. "Right now the IDWR has 303 pending water transfer applications. Protests have been filed against 68 of them for frivolous reasons by various groups. They don't win these protests, and have no intention of doing so, yet they can hold up a new operation's start-up for two years. That's how long it's taking IDWR to clear these cases."

Such protests increase costs for applicant, who must hire a lwayer and deal with delays in getting his operation going. Dairymen aren't the only ones facing such probelms, either, said Eilers. He pointed to a consultant with 30 applications before the department for different clients. All have been protested.